Why are Nazis Protected by the Constitution?

The First Amendment protects free speech – even if it is the most abhorrent and repugnant type of speech. Hate speech is protected by the Constitution.

It is important to note, however, that there is a line drawn in constitutional law, as mentioned in a previous post. There are limits to our freedom of speech. While hate speech is protected by the Constitution, the Supreme Court has ruled that our freedom of speech does not include a right to incite actions that would harm others, like jokingly screaming “fire” in a public space. Obscene speech is also not protected by the First Amendment (like child pornography).

Thus, a true and direct threat to harm someone is not protected free speech. If a Nazi demonstrator went directly to a Black or Jewish person and told them, “I am going to kill you,” that would not be protected by the First Amendment, as that would be considered the type of speech that is likely to cause someone imminent harm.

Yet, inciting people to be violent is actually protected by the First Amendment. In 1969, the state of Ohio charged a Ku Klux Klan leader, Clarence Brandenburg, of inciting violence against Jews and Black people while at a KKK rally. The Supreme Court later struck down as unconstitutional the Ohio law that prohibited any speech that advocated for violence. The Supreme Court said that speech could be prohibited only if it was directed to produce “imminent lawless action.” Thus, speech that abstractly incites violence is protected by the Constitution. In order for it to be illegal speech, the threat has to be direct and imminent, and not merely abstract.

The United States is almost unique in this respect. Many European democracies prohibit this type of hate speech. Is this legal approach a blessing or a curse for the United States? What do you think?